Mortgage – Repossession – Mortgagor’s solicitors instructed to make agreement to repay arrears in return for cancellation of eviction order – Bailiffs taking possession – Mortgagor claiming solicitor negligent in not reducing agreement to writing – Whether allowing mortgagor back into possession a disposition of land – Law of Property (Miscellaneous Provisions) Act 1989, section 2 – Plaintiffs’ claim dismissed
After a history of financial difficulties following redundancy, a warrant for the possession of the plaintiffs’ house was executed on August 13 1992. The night before, in the knowledge that the warrant was to be executed the following morning, a family conference had taken place and sums of money pooled in order, it was hoped, to pay off the accumulated arrears in court in time to forestall events.
The solicitor, an assistant with the defendant firm, attended the plaintiffs, who had cashed £3,250 of travellers’ cheques, at the door of the county court before it opened. At the same time a representative of the mortgagee, a locksmith and the bailiff had arrived at the plaintiffs’ house where his wife was waiting with two of her grandchildren. The solicitor thought that the plaintiffs had said that they could pay all the money and had telephoned the mortgagee’s solicitors to suggest that the eviction be cancelled if all the outstanding arrears were paid that day, August 13 . In fact the warrant was executed at 10.25 am and the mortgagee then sought money on account of costs in the sum of £12,000. The plaintiffs were not able to pay the arrears that day and the mortgagee remained in possession.
The plaintiffs brought an action for negligence against the solicitor and the question arose as to whether the solicitor had been negligent in failing to reduce the agreement made on the morning of the execution of the possession warrant to writing in compliance with section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989.
Held: The plaintiff’s claim was dismissed.
1. A mortgagor on the brink of eviction following the making of an order for possession did not effect a disposition of land which was required to be in writing for the purposes of section 2(1) by allowing the mortgagor back into possession on payment of arrears.
2. In any event the plaintiffs had not proved that the mortgagee would have entered into the written agreement.
3. The solicitor did not have any duty of infallibility nor was he an insurer, and had not acted negligently in the circumstances as described.
Oriel Hinds (instructed by Suriya & Co) appeared for the plaintiffs; Mark Wonnacott (instructed by Ince & Co) appeared for the defendant firm.
